Longtime New York Times reporter Linda Greenhouse says the
court’s chief deputy clerk, who was with Stewart that day, told her the story
to illustrate how easy some court decisions seem at the time.

Stewart was one of five Republican-appointed justices who
voted in the 7 to 2 majority to make abortion legal in 1973. When he retired in
1981, the decision still looked “rock solid,” Greenhouse wrote. Now, “not so
much.”

The justices decided
the abortion issue, but they didn’t settle it. The fight over abortion rights still
rages, and, in a gigantic leap to the past, could be headed back to the courts.

North Dakota Gov.
Jack Dalrymple on Tuesday signed the nation’s strictest abortion law,
prohibiting nearly all abortions in the state. Dalrymple concedes the measure
likely won’t survive a court challenge but insists it’s “a legitimate attempt
by a state legislature to discover the boundaries of Roe v. Wade.”

North Dakota jumped over Arkansas, which for a couple of
weeks had the title of strictest abortion law. Last year, 19 states passed 43 provisions
limiting abortion services, according to the Guttmacher Institute, a
reproductive rights research group.

Could the Supreme Court unintentionally have set the stage for
the 40-year war over abortion? None other than Justice Ruth Bader Ginsburg, a
staunch advocate for women’s equality, has long believed that when the court stepped
ahead of the legislative process, it ignited the protest movement.

States were heading toward abortion rights, but not fast
enough for advocates of complete change. Only four states had repealed their
anti-abortion laws while 13 had liberalized them when the court made legal
abortion the law of the land.

The sweeping ruling was hailed as a breakthrough. But
Ginsburg said in a lecture in 1992 that it brought on a backlash that hurt
progress in women’s rights.

“Around the extraordinary
decision, a well-organized and vocal right-to-life movement rallied and succeeded,
for a considerable time, in turning the legislative tide in the opposite
direction,” she said then.

America’s story has always been one of expanding personal rights,
not reining them in. No one could have imagined in 1973 that four decades later
states would be chipping away at a woman’s right to choose.

Ginsburg suggested in the 1992 lecture that the
anti-abortion movement might never have gathered steam had the court taken
smaller steps. We’ll never know.

Appointed to the high court by
President Bill Clinton in 1993, Ginsburg celebrated her 80th
birthday March 15. She hasn’t changed her mind about Roe.

“It’s not that the judgment was wrong, but it moved too far,
too fast,” she said last year.

Much has changed in society, thankfully, since 1973. The
Supreme Court heard arguments Tuesday and Wednesday on two cases involving same-sex
marriage. Nine states and the District of Columbia now allow gay marriage.

Seventeen state attorneys general, including those in
Alabama and Virginia, filed a legal brief, citing fallout from Roe and Ginsburg’s
comments to contend that the court should butt out and let the process work its
will. That’s not fast enough for many Americans who want marriage equality to
be the law of the land.

In the arguments, the justices seemed reluctant to wade into
a case from California, where voters banned same-sex marriage with Proposition
8. Justices seemed far more likely to strike down the Defense of Marriage Act,
a 1996 federal law that allows only heterosexual married couples to receive
spousal benefits.

Ginsburg gave a glimpse of her distaste for DOMA’s
discriminatory effects.

The law, she said, creates “two kinds of marriage: the full
marriage, and then this sort of skim milk marriage.”

When the court rules, probably in June, we may find out
whether Ginsburg thinks that same-sex marriage has reached the point where the
court needs to step in.

And if, as she hopes, Ginsburg stays on the court as long as
Louis Brandeis, who retired at 82, the court’s liberal leader could hear an
abortion case.